We can do something about Mugabe
The international community’s response to the crisis has been feeble. The African Union has generally refused to condemn human rights abuses. South Africa’s “quiet diplomacy” has been an unmitigated failure. The United Nations’ response has been underwhelming. The collective failure of the international community to intervene has enhanced Mugabe’s belief that he can act with impunity.
Yet, international law is unequivocal in demanding that those who commit crimes against humanity be held accountable. Global action is essential because the crimes are so egregious. Crimes against humanity are committed as part of a widespread or systematic attack against a civilian population, and are usually carried out to a preconceived policy or plan by the Government. Criminal acts can include killings, sexual violence, torture, displacement and other inhuman acts such as using the distribution of food aid as a political weapon, or depriving housing and medical care to those who oppose the Government. Mugabe has committed or been complicit in all of these.
Under international law, Mugabe can be prosecuted under the concept of “command responsibility”. This legal principle holds that those in a position of authority can be held personally responsible for crimes committed by subordinates, including the army and police. So long as Mugabe knew or had reason to know that crimes were being committed by his henchmen and did nothing to stop them, he can be held criminally liable; he did not have to commit the crimes himself. The concept of command responsibility provides the legal linchpin to ensure that government officials who mastermind, incite or order the commission of crimes are brought to justice. The legal basis for holding Mugabe accountable is straightforward.
The ICC was established in 2002 to end impunity for the most heinous crimes. Because Zimbabwe has not recognised the court’s jurisdiction, the United Nations Security Council can authorise the ICC to investigate crimes committed by Mugabe and his regime. To do this, the UN Security Council need determine only that crimes against humanity “appear to have been committed” by Mugabe’s regime and that Zimbabwe’s crisis is a threat to regional peace and security. These are not steep legal hurdles. The crisis is real and evidence of Mugabe’s complicity is well-documented and overwhelming.
The UN Security Council used this same referral process to bring indictments relating to the crimes committed in Darfur; the international precedent has been set. As with Darfur, what is needed now in Zimbabwe is a collective affirmation that justice is not expendable.
For beleaguered Zimbabweans suffering under Mugabe’s brutal regime, the international community’s attempts at condemnation are ineffective and disheartening. Condemnation is not enough. The international community must take action. If the UN Security Council fails to refer the case to the ICC, it must explain to the world why Mugabe is given safe harbour by the UN and allowed to act with impunity.
The author is executive director of the International Bar Association
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